O. S. PERERA v. ATTORNEY-GENERAL

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54
Sri Lanka Law Reports
[1987] 2 Sn L R
O.S. PERERA
v.ATTORNEY-GENERAL
COURT OF APPEAL.
BANDARANAYAKE. J. AND DHEERARATNE, J.
A. 159/75 F.
C. EMBILIPITIYA 822/M.
JANUARY 27, 28, 30 AND FEBRUARY 3 AND 6, 1987.
Negligence – Damages for failure to issue permits – Forest Ordinance, s. 26 – People'sCommittees Act No. 16 of 1971 – People's (Janatha) Committee
The plaintiff having obtained a non-notarial lease of 100 acres of private land for fellingtrees was found to have felled trees in an adjoining forest reserve of the State, oninformation given by the People's (Janatha) Committee operating under the People'sCommittees Act No. 16 of 1971, investigations were set afoot and the plaintiff'soffence was compounded on a payment and the State timber confiscated. But theGovernment Agent, having earlier before the Janatha Committee's complaint issued apermit, later refused to issue permits for the transport of the balance logs until theplaintiff proved that the balance logs had been felled from the private land by matching
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Perera v Attorney-General
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the logs with the stumps on the private land. The plaintiff was also asked to define theboundary of the private land (s 26 of the Forest Ordinance) The Government Agentwanted to satisfy himself that these logs had not been extracted from yet unidentifiedareas of the Forest Reserve Further as the Land Reform Law had by then come intooperation the Government Agent wanted clearance from the Land Reform Commissionin whom the private land was by then vested
Held-
11) In enacting the Forest Ordinance conservation of timber was one intention of theLegislature but at the same time its need as an essential commodity in the lives of thepeople was also recognised. This recognition creates a legitimate interest in the natureof a right in the people to be allowed to transport timber for their legitimate needs Oncesuch a legitimate interest is recognized the law must also recognize a correspondingduty on the authorities to avoid causing wrongful injury to the people. There is thus aduty to exercise the discretionary power bona fide and properly, of issuing or refusing toissue a permit to transport timber. The people have a right to a permit in appropriatecircumstances. The breach of such statutory duty would give rise to a 'fault' and in theevent of loss a claim in damages in an Aquilian action as the loss suffered may havebeen prevented by diligence and the exercise of reasonable care.
(2) The trees being already felled the Land Reform Commission had no stake in thefelled logs. The condition of matching the logs with the stumps of the trees on theprivate land was unreasonable as it stipulated what was almost a physical impossibility.By unreasonably withholding the permits the Government Agent caused loss to theplaintiff as he could not fulfil his obligations to supply timber to the PlywoodsCorporation and State Timber Corporation and had to disband his workforce etc. Therehas been a breach of the statutory duty of care by the public authorities concerned byrefusing or refraining from issuing a permit to transport timber and the plaintiff istherefore entitled to his claim in damages.
APPEAL from judgment of the District Court of Embilip/tiya.
Dr. H W Jayewardene. Q.C. with N. R. M. Daluwatte, P C and H. M. P. Herath forplaintiff-appellant.
D. N Karunaratne. S.C. for defendant-respondent.
Cur. adv. vult
February 12. 1987
BANDARANAYAKE, J.
This concerns an action in damages brought by the plaintiff-appellantagainst the Attorney-General as representing the Republic of SriLanka.
4
By a writing dated 4.6.72 (P5) the plaintiff undertook to take onlease a land called Galwetawatte in extent 100 acres out of a privateland of 300 acres situated at Rakwana from the owner, one G. P. D.Jinadasa. By writing (P6) Jinadasa agreed to the terms of P5. The saidlease was obtained for the purpose of felling trees to supply timber
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and logs on contracts with the (1) Plywoods Corporation on P1 and P2and the (2) State Timber Corporation on P3 The plaintiff engagedstaff, labourers and hired elephants necessary for the purpose offelling trees and removing and stacking logs According to the plaintiffhe commenced felling trees on or about 1st August 1972 prior to P6and obtained a permit from the Assistant Government Agent,Atakalanpanna for the transport of 90 logs. Of this quantity the plaintiffsays he transported 74 logs within the times stipulated on the permit.The plaintiff says he asked for an extention of the permit to transportthe balance 1 6 logs on 1 9.8.72. But this extension was withheld. Onthe same day he says he asked for another permit to transport anotherconsignment of 90 logs. Here too a permit was withheld.
By a telegram (P7) dated 28.8.72 the Assistant Government Agentdirected the plaintiff not to fell any more trees. Letter (P8) from theAssistant Government Agent confirmed the telegram. P8 stated that
felling is stopped "until the boundaries of reserved forests in
private land are defined Please define the boundaries and show
same to the Grama Sevaka…". The plaintif says he accordinglystopped all felling operations. Section 26 of the Forests Ordinanceempowers a Government Agent to order an owner of a land to defineboundaries in certain cases. It was however submitted for theplaintiff-appellant that P7 and P8 could not have issued under powersof s.26 as the section does not contemplate a power to direct thestoppage of felling of trees in private land and the plaintiff was not theowner of the land.
There were according to the plaintiff 206 felled trees, 101 logs,600 round poles or logs and 400 yards of firewood lying on the saidleased land at the time of stoppage of work, all to the value ofRs. 34,700. The plaintiff had also to pay and discharge the workforceand the elephants and pay for other incidentals amounting to a sum ofRs. 13,300. The aggregate sum thus claimed is Rs.48,000.
A short point taken by learned State Counsel for thedefendant-respondent was that for delictual liability to arise there mustbe a statutory duty to do something, in this case to issue a permit totransport timber, and there must be a breach of such duty. It wascontended that the Forest Ordinance did not cast such a duty on theconservator of forests or his agents. What the Ordinance did was toconfer a discretionary power on the authorities to issue a permit. The
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CAPerera v. Attorney-General (Bandaranayake. J.)
permit is a privilege; it is not a right. Counsel referred to the relevants.24(1) of the Ordinance and the Regulations made thereunder andpublished in Government Gazette No. 14710/7 of 29.8.66, inparticular Regulations 5(1) and (2). Regulation 5(1) reads:
"The Conservator of Forests may by notification published in theGazette for purposes of s.24(1 )(t>) of the Ordinance specify anyarea as an area within, into or out of which timber of any specifiedspecies …. shall not be transported without a permit issued by … anauthorised officer."
It was contended that s. 24(1) gave the Minister power to regulate or
prohibit the transit of forest produce and the said regulation wasmade in the exercise of such power. It was admitted by theplaintiff-appellant that the Rakwana District was an area to which theabove regulation applied and that he had to have a permit to transportthe timber. Regulation 5(2) reads:
"No person shall within or out of any such area transport… timber…. without a permit issued by …. (an authorised) officer."
The appellants admitted that this regulation also applied.
Learned State Counsel contended that these regulations wereintended to conserve and regulate the movement of timber. TheOrdinance itself was to conserve forests and forest produce whichincluded trees-vide s.24(2) and regulate the felling and transport oftimber. In other words it was to protect forests, forest trees andtimber. Thus if the Ordinance considered as a whole and thecircumstances to which it relates was intended to protect forests etc. ;the regulations cited were intended to confer powers in order to fulfilthose objects and not intended or designed to cast a duty or obligationon the authorities to grant and issue permits to the populace totransport timber. There being no statutory obligation to issue a permit,the plaintiff-appellant is unable to establish an interest which thestatute was designed to protect and consequently must fail toestablish a cause of action in tortious liability. It is important todistinguish between a statutory power and a statutory duty in thiscase. It was thus contended that there was no breach of statutoryduty for which the defendant-respondent would be liable in damagesand was thus outside the scope of an Aquilian action in Roman-DutchLaw. The action was misconceived and therefore in any event theappellant cannot succeed as no tortious liability could be established
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by the plaintiff against the defendant. Counsel relied on passages inHalsbury's Laws of England, 4th Edition, Vol. 45, pp. 588-592,paras. 1279-1282.
It was State Counsel's position that in the instant case, there beingno breach of statutory duty and a consequent absence of culpa theproper approach may have been to ask for a writ of mandamus underthe English public law if the authorities had improperly exercised adiscretionary power in refusing a permit. This has not been done. Inthe result the appellant is not entitled to any relief.
In the light of the above submissions it becomes necessary toexamine the provisions of the Ordinance with a view to determiningwhether there is a statutory duty on the authorities to issue a permit,the breach of which would entitle a person to damages.
It is true that Parliament intended to consolidate the law relating toforests and the felling and transit of timber. But one is immediatelystruck by the preamble to the Ordinance and the fact of a need forregulation; timber is put to use in numerous ways by the populace. Toidentify a few of them what springs to mind is housing, fuel, furniture.and innumerable governmental and commercial uses in road and railtransport etc. Timber has been an essential commodity in everydaylife. There is an urgent need for it in daily life. In such circumstances itis difficult to accept an argument that the Ordinance was designedsolely to protect forests and trees etc. Conservation of timber was oneintention of the legislature but at the same time its need as anessential commodity in the lives of people was also recognised. Thataccounts for Regulation 5(1) and 5(2) where transport of timber waspermitted under supervision. This recognition of the need for its use bypeople creates a legitimate interest in the nature of 3 right to thepeople to be allowed to transport timber for one's legumate need.Once such a legitimate interest is recognised as a correctinterpretation of the statute and its regulations the law must alsorecognise a corresponding duty on the authorities to avoid causingwrongful injury to another. Such a negative statutory duty is cast onthose working the Ordinance, in keeping with its several objectives, toexercise a discretionary power properly without causing wrongful orunnecessary injury to another. There is thus a duty to exercise the ■discretionary power of issuing or refusing to issue a permit totransport timber bona fide and properly. The people have a right to apermit in appropriate circumstances. The breach of such statutory
CAPerera v. Attorney-General (Bandaranayake. J.j59
duty would give rise to a 'fault' and in the event of loss a claim indamages in an Aquilian action as the loss suffered may have beenprevented by diligence and the exercise of reasonable care if it werenot intended.
I am therefore of the view that this action can succeed if a breach ofstatutory duty is proved by the plaintiff-appellant and that thealternative course of asking for a mandate in the nature of a writ ofmandamus on the Government Agent to issue a permit underadministrative law was also available to the defendant if he so chose.The choice of a remedy where alternatives are available as in this caseis often influenced by several circumstances. Here we have perishablegoods and obtaining a mandamus may not have served much purposeif the time taken in obtaining it affected the value of the goods resultingin a diminished value. On the other hand, the goods being perishablethe more profitable course would doubtless be an action in damagesto recover its present value.
Upon these conclusions the Court must now examine the facts andthe conduct of the parties. The evidence discloses that upon anapplication for a permit to transport timber made by theplaintiff-appellant in early August a permit was granted. Thereafter theAssistant Government Agent has said that he received informationthat the plaintiff had felled trees from a reserved forest lying adjacentto the private land he had taken on lease. He passed that informationon to the Grama Sevaka for investigation and report and acting interms of s. 26 of the Forest Ordinance directed the plaintiff to (a)refrain from felling trees on the private land and (b) to demarcate theboundaries of the private land. In response to this the plaintiff says hestopped felling trees altogether and he wrote P9 dated 4.9.72 to theAssistant Government Agent stating that he had already submitted aplan showing the leased land made by a Kachcheri Surveyor andmarked P4. However complains the plaintiff he got no relief. So hewrote to the Government Agent – P10 – dated 14.9.72 complaining ofthe situation. The Government Agent referred P10 to the AssistantGovernment Agent for report and that report dated 30.10.72 hasbeen produced by the defendant-D1.
It would be convenient to turn now to what had transpired regardingthe felling of trees by the plaintiff from about 1.8.72. Besides fellingtrees on the private leased land of 100 acres, the Janatha Committeeof the area reported to the Assistant Government Agent that 47 trees
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in an adjoining reserved forest had also been illicitly felled by theplaintiffs agents and logged. This information had been given onabout August 26th and he proceeded to have it investigated. TheAssistant Government Agent denied that an application had beenmade for an extension of the earlier permit or a fresh application totransport another 90 logs on 18th August as stated by the plaintiff. Atthat stage the Grama Sevaka reported that 40 trees in the reservedforest had been felled.
It may be noted at this point that the People's Committees ActNo. 16 of 1971 (which was in operation at the times relevant to thiscase) in s. 12 sets out the aims and objects of a People's- Committee.Clause (2) reads:
«
"by maintaining vigilance and making complaints to the
proper authorities to preventillegalactivities etc."
Section 13 sets out the powers of a Committee. Clause (a) includes:
"making inquiries and receiving written replies from
Government Departments, etcregarding mattersin the
opinion of the Committeeare matters relating to the aims and
objects of a Committee."
The evidence was that the Janatha Committee was activated onlyafter the first permit was issued on 16.08.72. Counsel for appellantcomplained that the Janatha Committee members and partysupporters of the Sri Lanka Freedom Party accompanied theGovernment Agent and other officers when they came on inspectionof the site, and that the plaintiff objected to their participation. It wasin evidence that the Government Agent had asked those people toleave and that only Government officials engaged in the inspection.The law entitled the People's Committee to report illegal felling of thetrees. Their interest therefore was lawful. Counsel however urged thattheir activities would have overawed the public officials intosubmission to their views which was why the permit was withheld.
It was also in evidence that there were reserved forests in the midstof the leased private land. The plan P4 submitted by the plaintiff inearly August is not a plan showing the entirety of the leased land. Itshows only the Eastern boundary of the private leased land. To theEast of this boundary are reserved forests. Several streams about 3 or
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4 in number, flow down from the private land towards the East. Theforest on either side of each stream would be reserved forest. Theboundaries of the forests are not demarcated in P4. In the result P4does not serve much purpose and is not helpful to the authorities indetermining whether or not to issue a permit.
The Government Agent, Ratnapura, took control of theinvestigation. The plaintiff showed the areas of illicit felling to theGrama Sevaka on 06.11.1972. On 10.11.1972 there was aninspection of the site-(vide diary entry P16) of felling by theGovernment Agent, Ratnapura and the Assistant Government Agent,the Grama Sevaka and a Kachcheri Surveyor. The boundaries of thereserved forest where illicit fellings had in fact taken place were seen.Boundary stones were seen. The stumps in the reserved forest werecounted and found to be 50 in number. The felled trees and logs wereseen in the private land. All logs were counted and stamped. Theillicitly felled logs were separated. The surveyor spent several daysagain at the site between 27.1 1.1972 and 03.12.1972. Thesurveyor submitted a report to the Government Agent. Acting in termsof s. 51 (1) the Government Agent compounded the offence of illicit. felling in accepting a sum of Rs. 926.90 as a royalty from the plaintiffon 03.01.1973-P12. The Government Agent however did notrelease the illicitly felled timber seized under the powers he had bys.51 (2){b). Instead the Assistant Government Agent recommended "that it be removed to a Government Store. That was done in 1975.Therefore the question of releasing the property seized ascontemplated by s. 51 (2) did not arise and the plaintiff can lay noclaim whatever to the timber illicitly felled. There was alsoevidence-particularly D18-that in a reply to a letter written by theplaintiff on 01.09.1972 the Assistant Government Agent had saidthat the agreements P5 and P6 entered into with the owner of theprivate land were not notarially executed suggesting therefore that theplaintiff had no rights even to the trees felled on the private land.Appellant's Counsel branded this conduct as a manifestation of amalicious intent.
In challenging the position of the plaintiff that he made twoapplications for transport of timber in middle of August it was pointedout by the respondent that the plaint bears no reference to suchsubsequent applications. The plaintiff could have asked the defendantto produce those applications if they were relied upon by the plaintiff.
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[1987] 2 Sri LR.
The above is the background to the plaintiff's application for arenewal of the earlier permit to transport the balance timber still lyingon the private land made in February 1973. The plaintiff-appellant'sposition is that there were no more fellings after 26.08.1972. It isalleged that the defendant maliciously and unlawfully refrained fromissuing a permit. The issue before this Court is whether by suchconduct in not issuing a permit the defendant is in breach of astatutory duty and therefore liable in damages.
The incidents of January and February 1973 were as follows:
The offence of illicit felling was compounded on 08.01.1973 byP12. Thereafter the plaintiff by P13 dated 08.02.1973 applied tothe Government Agent Ratnapura for renewal of the permit totransport the balance 16 logs (all stamped) remaining on his land.The available correspondence shows that the Assistant GovernmentAgent gave instructions to the Grama Sevaka-vide PI 9 —letterdated 23.02.1973. In the letter the Assistant Government Agentstates that:
It is necessary in view of plaintiff's application P13 to determinewhether in fact the trees have been felled before 26.08. 1972as claimed as since 26.08.1972 the private land was vested inthe Land Reform Commission under the Land Reform Law No. 1of 1972.
If you find that trees have been felled on this private land after26.08.1972 they must be separately stamped.
Further the Government proposes to acquire 100 acres of thisland and the first steps towards such acquisition have beentaken.
Therefore ascertain if there have been fellings on the portion of theproposed acquisition.
•t
Thereafter the Grama Sevaka has directed the plaintiff to visit the landon 08.03.1973 in order to show the stumps of timber lying on theprivate land (presumably for the purpose of proving that that timberhad indeed been cut from trees on the private land). Thereafter theGrama Sevaka has reported to the Assistant Government Agent byundated letter V4 that a representative of the plaintiff visited the landon 08.03.1973 and showed him logs but that he asked him to come
t
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again to match those logs to the stumps on 13.03.1973 and on13.03.1973 that person told him that as now it is apparent that apermit is not being issued they are not interested in obtaining a permitany more.
The Assistant Government Agent in his evidence has taken up theposition that upon application P13 he had to satisfy himself that thetrees in respect of the balance 16 logs have been felled on private landand that the plaintiff should produce a writing that he had a right to felltrees on such land (having in mind the Land Reform Law which waspassed on 26.08.72 and that in effect the Assistant GovernmentAgent asked for a letter from the Land Reform Commission that theywere prepared to release this timber lying on vested land). It wasappellant’s counsel’s submission that vesting came only withregulations passed under the Land Reform Commission Law whichwas well after 26.08.72. Appellant's counsel submitted that it wasimpossible to match the logs to the stumps on the private land. Therewere 206 logs. The number of trees felled would be less than thenumber of logs prepared for transport. Those trees were felled over anarea of 100 acres. How was one expected to match trees felled withan axe? In the case of the illicit felling on the reserved forest all theauthorities had to do was to count the stumps on the reserved forest.This request was in the circumstances most unreasonable andcalculated to harass the plaintiff. Reference to the Land Reform Lawas late as February/March 1973 was also intended to place animpediment in the way of the plaintiff. The Land Reform Law wascertified on 26.08.72. Why did the authorities not investigate thisaspect between September 1972 and January 1973 when inquirieswere afoot. The Government Agent himself with his officials hadinspected the site, demarcated boundaries, surveyed the land,identified illicit fellings, stamped all logs and compounded the offenceand had not charged the plaintiff in a Court of Law. Malice wastherefore apparent contended counsel for the appellant.
Respondent's counsel contended that the Assistant GovernmentAgent was justified in the stand he had taken in February 1973 uponapplication P13 as there was a possibility that all illicit fellings may nothave yet been discovered and that some of the logs lying on theprivate land may have been from illicitly felled trees from state land notso far discovered. This submission is a little different to what theAssistant Government Agent has said in his testimony already referredto which was that he wanted to be satisfied that the logs were from
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trees felled on private land and not from land vested in the LandReform Commission. State Counsel submitted that there was a dutyon the Assistant Government Agent to act with caution in thebackground of the proved and admitted illicit fellings and the cominginto force of the Land Reform Law and that his response to P13 wasreasonable, proper and lawful in the circumstances. The plaintiff hadfailed to respond to the Grama Sevaka's directions, had said hecannot show the stumps on the private land and had in fact declaredhis decision not to pursue his application any further and that thereforeP13 had been abandoned. The authorities were therefore justified insuspending further action on P13. There were no improper motivesand he had acted bona fide.
The District Judge had held that the Assistant Government Agenthad acted correctly, bona fide and lawfully.
Where an enabling statute confers powers for a particular purposethen in view of the duty of care there will be abuse of power where it isexercised to achieve some other purpose. It is submitted by theappellants that in this instance the power was exercised to frustratethe plaintiff. Again when there is a duty of care there may be abuse ofpower by taking improper considerations or irrelavant considerationsinto account. Here the Court is concerned with what factors were orwere not considered in reaching a decision. Again the Court shouldconsider whether the decision was patently unreasonable. In this caseillicit fellings were discovered in August/September 1972, fullinvestigations were made and the plaintiff's offence was compoundedand State timber confiscated. The plaintiff was not charged before aCourt. The matter of the illicit fellings was thus settled by January1973. After all of this the Assistant Government Agent has directedthe plaintiff to take yet another step by proving that the felled timberlying on the leased land matched the stumps on that land to prove thatthose logs were from private land. This directive I consider almostimpossible to fulfil. One would literally have to carry and fit logged treetrunks to stumps over a 100 acre extent. This is patentlyunreasonable. The probability of discovery of further illicit fellings afterall the investigations is also in my view too remote. For this reason toothis directive is unreasonable. Again, directing the plaintiff to obtain a
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letter from the Land Reform Commission that the fellings were onprivate land and not on Land Reform Commission land is irrelevant forthe reason that-
(a) even if it was land which had vested in the Commission, yetunder the definition of 'agricultural land' in s.66 of the LandReform Law, anything attached to the earth would beconsidered as part of 'agricultural land’ for the purposes of thiscase and not that which has been detached such as felled treesor logs lying on the ground.
There was no evidence that any fellings had occurred after 26.8.72.So this matter of the Land Reform Commission's possible interest inthe land was irrelevant. In fact the plaintiff insisted that there had beenno fellings after that date. With the activation of the JanathaCommittee of the area and the interest shown by the Sri LankaFreedom Party supporters it is overwhelmingly, unlikely and improbablethat the plaintiff would have continued illicit fellings surreptitiously orindeed ignored or acted in defiance of the Assistant GovernmentAgent's directive not to fell trees. Thus the Assistant GovernmentAgent's conduct in February and March 1973 on receipt of P13 asseen by his evidence and that of the Grama Sevaka is manifestlyunreasonable. He has also taken irrelevant matters into considerationwhich has affected the plaintiff. This conduct amounts to negligence.It has influenced the plaintiff into abandoning his legitimate interests; ithas frustrated the contracts he had with the Plywood Corporation andthe State Timber Corporation on P1, P2 and P3 and caused damageto him. There has therefore been a breach of the statutory duty of careof the plaintiff's interests caused by the negligence of the publicauthorities concerned in refusing or refraining from issuing a permit totransport timber upon application P13 in the circumstances of thiscase. This breach has resulted in damage to the plaintiff. He istherefore entitled to his claim in damages.
I accordingly set aside the judgment of the Court below and allowthis appeal. Costs are fixed at Rs. 1,050.
DHEERARATNE, J.-l agree.
Appeal allowed.